New Georgia Ethics Opinion Results in First Ever “De-Registration” of Mediator

As I have mentioned in the past, the Georgia Office of Dispute Resolution (GODR) oversees the court-referred mediation programs in the State of Georgia.  Georgia has minimum training and professional experience requirements for mediators that wish to accept court-referred cases.  They also have an Ethics Committee that reviews complaints against mediators.

Yesterday, I received an email alert from the GODR regarding a recent ethics opinion, only the third ever to be issued.  It is a particularly troubling case due to the numerous and egregious lapses in judgment made by this particular mediator.

In summary, the mediator, who was also a licensed psychologist, was referred a couple in need of counseling through a church program for troubled marriages.  After meeting with them jointly and individually in a vague and undefined capacity, he offered them a choice: continue marriage counseling with him or allow him to mediate their divorce.  This was the first mistake.

After the couple chose to have him mediate, but before the mediation occurred, the wife/mother requested that the mediator conduct psychological testing on her son for some educational problems.  The mediator agreed. Mistake number two.

Sometime later, the couple participated in two mediations, after which the husband/father terminated the mediation relationship and filed a complaint against the mediator. The husband/father alleged that the mediator was biased against him and pointed to several statements made by the mediator during the mediation, the educational testing performed by the mediator on behalf of the mother, as well as the fact that mediator allegedly “spent an extra hour counseling his wife alone after the second mediation session ended.”  The mediator claimed the “extra hour” was simply a caucus and part of his policy to give “equal time” to the parties.  He also claimed that the alleged bias was part of his technique to help diffuse tension and I guess, reality test.  The explanations he provided seem like ex post facto excuses, but not clearly “red flag” mistakes or ethical violations.

After the mediation relationship was terminated, the wife/mother asked the mediator to continue counseling her children for educational and behavioral issues, and he met with both of her children several times.  Mistake number three.

But we still haven’t reached the piece de resistance.

Sometime after the counseling session, the wife/mother filed a motion in conjunction with the divorce proceeding and for whatever reason, the mediator was called to testify.  rather than refuse to testify, as spelled out in his own Guidelines for Mediation and the ADR Rules, the mediator willingly testified about “how he came to mediate for the couple and the result of the mediation.”  While the Ethics Committee found that these “matters in themselves are not confidential in a court-connected mediation,” they also found

no evidence that he refused to testify or fought to quash a subpoena.  There was no evidence that he sought a waiver of confidentiality from the family. Respondent did voluntarily what he could not be required to do under the rules.

Mistake number four.

Even the judge recognized this mediator’s suspect ethics and wrote in an Order that he

“found [Respondent’s] testimony and involvement with the parties in this case questionable at best.”

Then, in the bonehead move to top all bonehead moves, the mediator responded to the Court’s written opinion challenging the mediator’s professional integrity by filing an eight page affidavit, in which the mediator

described [the husband's] disruptive and uncooperative behavior during the mediation and quoted angry and insulting statements [the husband] made in joint session, as well as in caucus.

In his defense, the mediator claimed that the court needed to know “the true reason for the failed mediation,” and that he “sought only to clear [his] name.”  Mistake number five, six, seven . . .

The Ethics Committee Opinion reads like a laundry list of “What Not to Do As A Mediator”.    Of the major issues, the Committee found that the mediator violated the Ethical Standard for Mediators by serving the family in three different professional roles within three months’ time – counselor, mediator, educational consultant.

The Committee also found that the mediator’s act of

testifying voluntarily in open court about the mediation and [Mediator's] voluntary submission to the court of an affidavit detailing [the husband's] behavior and words in the mediation constituted multiple violations of the confidentiality rules.

But then, of course, you already knew this because you have common sense. The Ethics Committee felt that this man committed such egregious errors that they removed his name from the roster of approved mediators. Apparently, the first time that penalty has ever been invoked.

My only issue with the Committee is that the Opinion does not name the mediator.  I believe this is a mistake. Ineptitude of this magnitude should be exposed.  While he can no longer accept court-referred cases, he is allowed to continue working with private parties.  In order for the marketplace to function properly, information such as this should be shared or made available to all potential consumers.  And if I knew who he was, I’d expose him in a heartbeat.

An uphill battle against the stigma of being “court-appointed.”

I recently received a call from an attorney scheduled for a court-referred mediation:

“Chris, this is Lawyer X.  We’d like to cancel the mediation.  Don’t take this personally, but we’ve decided on another mediator.”

Of course, I took it personally, expressed my disappointment and politely pressed the issue with the lawyer.

What I learned shouldn’t have surprised me.  This lawyer, a sophisticated end-user of mediation, had a bad experience with a court-appointed mediator and did not want to repeat that.   While the specifics of the occurrence were not shared, there was distinct frustration in the lawyer’s voice.

The sad truth is that I understood what this lawyer meant and what I had to do.  If I wanted a shot a keeping the mediation, I had to prove that even though I was  “court-appointed,” I was competent enough to handle the case.

There is an unfortunate perception among many practicing attorneys here in Atlanta that the mediators on the court-appointed lists are simply not up to snuff.   I do not fully share this opinion.  Like any other vocation, there are some very good “court-appointed” mediators and some not-so-good “private/professional” mediators.

I do not think that licensure is the answer.  I just need to be ready for an uphill fight and start marketing a little more heavily to ensure that when an attorney reads my name on a “court-appointed” notice, she recognizes that I am a professional, competent mediator she would like to use.

I missed Lincoln’s Birthday yesterday.

But I love this quote, so I’ll post it today:

Discourage litigation. Persuade your neighbors to compromise whenever you can. Point out to them how the nominal winner is often a real loser – in fees, expenses, and waste of time. As a peacemaker the lawyer has a superior opportunity of being a good man. There will still be business enough.

The Collected Works of Abraham Lincoln edited by Roy P. Basler, Volume II, “Notes for a Law Lecture” (July 1, 1850?), p. 81.

It is interesting to see a glimpse into the legal mindset of 150 years ago. Apparently, lawyers in Lincoln’s time were just as fond of taking every matter to court, and there were voices in the wilderness crying “Settle it…….settle it……”

As a litigator, I recognize that sometimes parties must fight for their rights. Sometimes litigation is the last best option. But there are also times when communication, cooperation, and compromise are best employed to resolve a dispute, and the parties need an experienced mediator who understands litigation, can analyze the risks, can help break communication barriers, and can recommend creative solutions.

Mediation “Reality” TV Revisited

The concept of the mediation-themed reality TV show has reared its ugly head yet again. As noted by Geoff Sharp and Vickie Pynchon, Jerry Lazar and Richard Kilnger (who makes a guest appearance in my comment section to defend the concept but conveniently forgets to mention he has a “piece of the action”), have been shopping a show called The Peacemaker.

According to the article, “The show has not proved an instant winner with television executives. . . . Lazar said he tries to emphasize the personal drama of mediations – a combination, as he puts it, of “Jerry Springer” and “Dr. Phil” – but realizes it is difficult to explain. ”

I’m on record as thinking this is stupid idea. And it appears that Hollywood may agree (for whatever reason).

Reality TV shows garner ratings by creating conflict – whether naturally or artificially: Taking food from starving castaways; Putting incompetent chefs in with experienced ones; pitting gold-digging strippers in trumped up “contests” to win the bed of an aging hair metal star. It’s contrived and it’s meant to appeal to our baser instinct. Even a show with a laudable goal – helping morbidly obese individuals lose weight – creates conflict by dangling Snickers bars, lasagna and french fries front of the newly slimmed down contestants.

As a colleague of mine said when I described the concept, “This show will only get viewers, advertisers, and top ratings if it depicts and exploits the dark side of conflict. No one gives a shit about the feel-good resolution at the end.”

This show will not raise awareness of mediation as a legitimate dispute resolution process any more than Judge Judy has helped steer litigants towards arbitration or Dr. Phil (or Sallie Jessie or Montel or Donohue or Oprah) have helped people with disabilities or mental illness seek counseling.

Frankly, I don’t want to spend the next 10 years of my career telling people, “No, its not just like on The Peacemaker.”

An Ethical Dilemma?

I had a mediation today that concerned home repairs and renovations. While I was trying to establish rapport, I revealed to one party in caucus that my garage door opener motor had recently gone kaput and I needed to replace it. The party immediately offered, “I know a great guy who does installations, you should give him a call.” For a split second, I thought about saying, “Sure, give me his number.” I thought better of that and politely declined.

On further reflection, would this have been so terrible? Would it have been so unethical to accept his expert recommendation? I could see how it might appear that I was violating my role as neutral by forging an apparent business relationship with that party. When the roles have been reversed and parties have asked if I could refer them to competent counsel, I’ve explained that I could not.

The part of me who does not want to spend 7 hours in the garage cursing at instructions translated from the original Chinese by a computer program sees it much differently.
UPDATE: It seems my words were prophetic!  It actually took me 7 hours to install the new garage door opener.  Good thing I had a cancellation and an entire day to get it done.